Retrofitting 42 dump trucks with a safer access ladder at a cost of $850,000 was a reasonable precaution to be taken by a mining company

Judgment date: 6 July 2011

Roche Mining Pty Limited v Graeme Wayne Jeffs [2011] NSWCA 184

Court of Appeal1

In Brief

The Court of Appeal considered the application of s 5B(1) and (2) of the Civil Liability Act 2002 (CLA). The Court considered whether the risk of falling from the ladder was foreseeable and not insignificant and whether a reasonable person would have retrofitted a transverse stair access system to a 50 tonne dump truck designed and manufactured by an experienced international company. The onus of proving any fact relevant to the issue of causation is always borne by the plaintiff pursuant to s 5E of the CLA. A plaintiff does not have to establish that an action or precaution would have obviated the risk of injury. It is sufficient to establish that the action would have reduced the risk. Background

On 14 April 2003 the plaintiff sustained injuries following a work place accident at the Wambo Coal Mine, (Wambo) when he fell approximately 2.5 m whilst using a ladder to climb a dump truck to access its cabin. The plaintiff gave evidence that on ascending the ladder he went to pull himself up to the second top rung but his left hand slipped and he lost balance falling to the ground below.

The plaintiff commenced working at Wambo on 9 December 2002 and was passed by the defendant's safety officer as competent in his boarding and alighting technique for the Caterpillar 785B (Cat 785B).

The plaintiff was employed by Damstra Mining Services Pty Limited (Damstra). Damstra was a labour hire company which provided skilled employees to Roche Mining Pty Limited (the defendant). The defendant was in charge of the running of Wambo and owned the plant and equipment used at the mine including the Cat 785B rear dump truck which the plaintiff fell from.

Supreme Court Decision

The primary judge, Hoeben J found that the relationship between the defendant and the plaintiff, whilst not being co-extensive with that of an employer or employee, was significantly closer than that between a principal and an independent contractor. The defendant was found to have full charge of all operations at the mine and to have had the responsibility of ensuring that the machinery, apparatus and equipment was maintained in a safe working condition.

The primary judge accepted the plaintiff's submission that the nature of the defendant's duty of care was "to use reasonable care to avoid unnecessary risks of injury to the plaintiff and to minimise other risks of injury", applying Stevens v Brodribb Sawmilling Co Pty Limited2. The primary judge found that "the content of the duty owed by Roche to the plaintiff was to exercise reasonable care in...